Piggyback Jurisdiction in the Proposed Federal Criminal CodeThe Yale Law Journal, Vol. 81, No. 6. (May, 1972), pp. 1209-1242.Stable URL:http://links.jstor.org/sici?sici=0044-0094%28197205%2981%3A6%3C1209%3APJITPF%3E2.0.CO%3B2-KThe Yale Law Journal is currently published by The Yale Law Journal Company, Inc..Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available athttp://www.jstor.org/about/terms.html. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtainedprior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content inthe JSTOR archive only for your personal, non-commercial use.Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained athttp://www.jstor.org/journals/ylj.html.Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printedpage of such transmission.JSTOR is an independent not-for-profit organization dedicated to and preserving a digital archive of scholarly journals. Formore information regarding JSTOR, please contact [email protected]://www.jstor.orgTue May 29 14:13:13 2007Piggyback Jurisdiction in the Proposed Federal Criminal Code The federal criminal law is currently a chaotic collection of statutes enacted piecemeal over the past two centuries. Although there have been several attempts at codification, the result in each case has been little more than a rearrangement of the existing provisions.' In recog- nition of the continuing need for revision, Congress in 1966 created the National Commission on Reform of Federal Criminal Laws, with a broad mandate to revise and recodify the current ~tatutes.~ The Com- mission took its task seriously; in January 1971 it submitted the final draft of a proposed Federal Criminal Code which, if enacted, would constitute a major ref~rm.~ The proposed Code departs significantly from present law in its treatment of federal jurisdiction. The Code simplifies and makes con- sistent existing jurisdictional provisions, and in addition includes a provision for "piggyback" jurisdiction,* which would permit federal prosecution of a broad range of common crimes, normally punishable only by the states, when committed in association with federal offenses. The Commission justifies the piggyback provision as a rational and convenient solution to certain drafting problems inherent in a federal c0de.j Critics, on the other hand, claim that it constitutes an unwar- ranted expansion of federal authority into the state d~main.~ This 1. There have been three such recodifications: the Revised Statutes of 1873-74, Act of June 20, 1874, ch. 333, 18 Stat. 113; the Penal Code of 1909, Act of March 4, 1909, ch. 321, 35 Stat. 1088; and the revision of 1948, Act of June 25, 1948, ch. 645, 62 Stat. 683 (codified at 18 U.S.C. (1970)). For a survey of the history of the federal criminal law, see McClellan, Codification, Reform, and Revision: The Challenge of a Modern Federal Criminal Code, 1971 DUKE L.J. 663 (1971). Senator hlcClellan is Chairman of the Sub-committee on Criminal Laws and Procedures of the Senate committee on the Judiciary, and was a member of the National Commission on Reform of the Federal Criminal Laws. His article is based on a speech he gave before the Senate introducing the Commission's proposed Federal Criminal Code, 117 CONC. REC. S. 2955-3006 (daily ed., Mar. 11, 1971). 2. Act of Nov. 8, 1966, Pub. L. No. 89-801, 80 Stat. 1516, as amended, Act of July 8, 1969, Pub. L. No. 91-39, 83 Stat. 44. 3. FINAL OF THE NATIONAL ON OF FEDERAL LAWSREPORT COMMISSION REFORM CRIMINAL (1971) [hereinafter cited as FINAL REPORT]. The FINAL REPORT is reprinted in Hearings on Reform of the Federal Criminal Laws Before the Subcorrcm. on Criminal Laws and Procedures of the Senate Comm, on the Judiriary, 92d Cong., 1st Sess., pt. 1 (1971) [here- inafter cited as Hearings]. The FINAL REPORT includes the full text of the Commission's proposed Federal Criminal Code [hereinafter cited as CODE]. An earlier draft of the Code is presented in COMMISSION REFORM FEDERAL LAWS, STUDY NATIONAL ON OF CRIMINAL DRAFTOF A NEW FEDERAL CODE (1970) [hereinafter cited as STUDY CRIMINAL DRAFT]. 4. CODE§ 201(b). 5. See McClellan, supra note 1, at 696-98. 6. Younger, State v. Uncle Sam, 58 A.B.A.J. 155 (1972): Liebmann, Chartering a Na-tional Police Force, 56 A.B.A.J. 1070 (1970); National Association of Attorneys General, Disapproval of Study Draft of Proposed New Federal Criminal Code, printed in Hearings 6-11.The Yale Law Journal 1701. 81: 1209, 1972 Note will explore the functions of the piggyback provision, its con- stitutionality, and its implications for the scope and exercise of federal prosecutorial power. I. The Proposed Code's Approach to Jurisdiction A. The General Jurisdictional Frumeworle Unlike the states, the federal government does not have plenary criminal jurisdiction. Rather, it is limited to regulating criminal be- havior that is in some \\ray related to one of the constitutionally dele- gated federal Federal criminal statutes have traditionallypo~ers.~ taken account of this limitation by including the requisite jurisdic- tional factors within the definition of each offense. The Lindbergh -Law, for example, does not reach kidnapping per se, but instead makes transportation of a kidnapped victim in interstate commerce a federal offense.8 This traditional approach raises several problems. First, it has occa- sionally led courts id treat jurisdictional-factors as elements of the substantive offense. Under the mail fraud statute, for example, it has been held that an offender can be sentenced separately for each item mailed, regardless of the severity of the underlying fraud.9 Similarly, courts have occasionally held that the government must prove that the defendant was aware of the particular jurisdictional factor that made the offense federal.1° More significantly, the present approach has led to substantial incon- sistencies in the definitions, penalties, and